Vardon Point Apartments [2008] QBCCMCmr 475 (23 December 2008)

Last Updated: 7 January 2009

REFERENCE: 0871-2008

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	29516
Name of Scheme:	Vardon Point Apartments
Address of Scheme:	1 Millennium Circuit PELICAN WATERS QLD 4551

TAKE NOTICE that pursuant to an application made under the abovementioned Act by

Delwyn Humphries, the Owner of Lot 63

I hereby order that the Body Corporate for Vardon Point Apartments shall submit a motion to the next general meeting seeking approval for the keeping of two cats in Lot 63. I further order that a copy of this order and statement of reasons shall be included in the notice of meeting at which the above motion is considered.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0871-2008

“Vardon Point Apartments” CTS 29516

Vardon Point Apartments community titles scheme 29516 (Vardon Point Apartments) consists of 70 lots and common property. The community management statement (CMS) for Vardon Point Apartments indicates that the Body Corporate and Community Management (Accommodation Module) Regulation 2008[1] (Accommodation Module) applies to the scheme. Department of Natural Resources and Water records show the scheme is registered as Survey Plans 138675, 140379 and 143131.

APPLICATION

Pursuant to the Body Corporate and Community Management Act 1997 (Act), this application was made by Delwyn Humphries, Owner of Lot 63 (applicant) on 14 October 2008. The applicant sought orders against the Body Corporate for Vardon Point Apartments (respondent) in the following terms:

To be able to keep two cats on a permanent basis in my unit. IE for the AGM vote to be overruled.

PROCEDURAL MATTERS

Under section 243 of the Act, a copy of the application was provided to the Body Corporate, with an invitation to the Committee and all owners to respond to the matters raised by the application. Submissions were made by the Committee and the owners of 15 lots. The applicant inspected the submissions received and made a written reply.[2]

A dispute resolution recommendation was made referring the dispute to departmental adjudication. I then investigated the dispute, pursuant to section 271 of the Act, which included reviewing the CMS, application and submissions and seeking further information from the parties.

MATTERS IN DISPUTE

The application relates to the applicant’s request to keep two cats in her apartment. The facts of the dispute, as outlined in the application, submissions and reply, can be summarised as follows.

On 20 May 2008 the Body Corporate Manager (BCM) wrote to the applicant noting that there was a cat kept in her unit and, as no approval had been sought or given by the Body Corporate, advising that this was in breach of By-law 7.1. The applicant acknowledges that she did breach the by-law by not seeking approval before she looked after her daughter’s cats.

On 13 July 2008 the applicant made a written application to the Committee to keep two cats within the confines of her lot. The matter was considered at a Committee meeting on 22 August 2008. The minutes indicate that the Chairperson advised the meeting that it had no alternative but to reject the application because a resolution at its Annual General Meeting (AGM) in 2002 had agreed (by 37 votes to 1) that there shall be no animals (specifically dogs or cats) allowed in the scheme until the motion was revoked. The Committee resolved to submit a motion to the forthcoming AGM for consideration of the applicant’s request. The AGM on 19 September 2008 considered a motion to give approval for two pedigree cats within the confines of Apartment 82. The motion failed with 10 votes in favour, 30 against and no abstentions.

The applicant expresses various concerns about the August Committee meeting in which she says three of the five Committee members initially indicated they were willing to support the request. Correspondence was exchanged between the applicant and Committee members prior to the meeting. The applicant is also concerned about a campaign against the AGM motion and particularly a flyer which was distributed which the applicant argues was emotive, scaremongering, misleading and unfairly influenced the vote. In particular she disputes that the question of whether she has cats in her lot or not has any impact on the cleaning and maintenance of any other lot, and does not then mean that visitors to the scheme could bring in pets. She says that at the AGM no one responded when she asked how these cats would impact on their lives and so she argues there seems to be no valid reason for not allowing the cats.

It is also noted that on 31 January 2008 the Committee discussed the preparation of a set of guidelines regarding the types of animals which might be approved by the Committee. A motion that this be done was considered at the September AGM but failed with 8 votes in favour and 30 against. Apparently discussion at the AGM indicated that any future requests for a pet would need to go to a general meeting. In addition, the August Committee meeting did not approve a proposal to put a motion to the AGM to amend By-law 7 to prohibit animals.

The Committee made a submission noting that a motion to approve the cats was rejected at the 2008 AGM and the Committee is obliged, unless this application dispute resolution application is approved, to act on that decision and require the removal of the cats.

Some 13 submissions oppose the application. Comments include:

• All owners were aware of the ‘no animals’ policy in the apartments when purchasing.
• The submitters are in favour of retaining the ‘no animals’ policy.
• Reference is made to the ‘house rules’ for the scheme, with the current rules issued in October 2004 specifying that pets are not permitted in apartment towers at any time.
• If the applicant had undertaken the necessary enquiries regarding animals when she purchased she would have been advised of the 2002 resolution, which is very clear.
• The apartments are not appropriate or suitable for animals because there is no soundproofing, however animals are permitted in the townhouses.
• Several suggest that they purchased in this scheme partly because the apartments were stipulated to be animal-free.
• The applicant did not seek approval before bringing cats into her lot, has had cats in her lot since she purchased in December 2007, and has contravened By-law 7. She then took eight weeks to apply for approval after she received a notice from the Body Corporate.
• One of the cats was found wandering unattended in the corridors and lobby in May and entered an adjoining apartment. Some argue the applicant cannot guarantee that the cats won’t escape again.
• The majority of owners opposed the application in September, and there is no basis to overrule the majority. The motion was unambiguous and the meeting was validly conducted.
• Allowing pets in the apartments would adversely affect the 5 star standard of the complex.
• Allowing this application would set a precedent and result in ‘less desirable’ pets.
• Some are concerned about the impact of cats on those with asthma and allergies. Another is concerned about cat hair shed on the applicant’s balcony reaching other apartments and into the ventilation system. One is concerned that allowing cats will lead to barking dogs, and that the disposal of animal waste in common bins would cause odour and hygiene problems.
• One comments that this is the first application for a pet since she purchased in 2003.
• One claims that the application includes false and misleading information.
• One claims the Committee is yet to make a decision, albeit guided by the AGM decision, and that an adjudicator does not have the jurisdiction to overturn the result of a meeting.
• A Committee member notes that the Committee must put into effect the lawful decisions of the Body Corporate and so was obliged to refuse the request pursuant to the 2002 AGM decision. While he says the Committee in hindsight should have made a decision on the request itself, it accepted the suggestion to put the matter to an AGM and the applicant consented to that suggestion. He agrees that there is no documented ‘no animals’ policy.
  

Two submissions support the application:

• One says that she was one of the first purchasers and was told by the developers that pets wouldn’t be a problem. She was the only owner who voted in favour of pets in 2002 but she was forbidden by the then Chairperson to state her objections. She mistakenly interpreted the current by-law as prohibiting pets and thinks others thought this too. She says the majority of the Committee were prepared to approve the cat. She argues that cats are quiet and easy to maintain with deodorised kitty littler and transportable containers. She says that in her experience pet friendly environments do not reduce the value of a property.
• Another says they can see no problem arising as the cats will be kept within the apartment.
  

In her reply to submissions the applicant says:

• There seems to be some hostility towards her for pursuing this matter but, as she felt her application was unreasonably declined, she believes she was within her rights to do so.
• She was not previously aware of claims that one of her cats had entered an adjacent apartment and she finds it difficult to believe that this did occur. In the incident the cat darted out of her apartment as she was entering her apartment with groceries and was only outside for the time it took her to put down her groceries and go back out to get it. The adjacent apartment door was closed when she initially went in and when she came out to get the cat.
• At the time of the incident she was minding the cats for only four days and by the time she got the Body Corporate notice the cats were already gone. However in July her daughter asked her to take the cats permanently and so she made the application to the Body Corporate at that time. The application was not as a result of the breach notice.
• In regards to allergic reactions, she understands that cat dander is everywhere in public places. Moreover, her unit is on the extremity of the complex, on the third floor and not near walking paths. She says those with allergies are more likely to be affected by cats in the villas. She also says that she would not allow the cats onto her third floor balcony.
• Those concerned about seeing or hearing pets are already exposed to pets in the villas.
• Submissions seem to have turned into a ‘no pets’ issue rather than just her pets, but the scheme does not have a no pets by-law. When recording a new CMS in 2003 the Body Corporate did not take the opportunity to amend the by-law to prohibit pets.
• Queries concerns about cats given the more significant impacts of holiday guests.
• 30 owners did not vote on the September motion which means they were indifferent.
• In regard to claims that she made false and misleading statements, she says she stated her observations and opinions of what she believed had occurred, and is entitled to her opinion.
• She believes her application was unreasonably refused. She argues it is discriminatory for owners to decide how another person lives within the confines of their own home.
  

At my request, a member of the Commissioner’s Office contacted the applicant to clarify the current situation with the cats. She confirmed in writing that the cats were not residing in the scheme and that they had only been there on three occasions, being for two weeks in January, less than a week in May, and two weeks in September. The BCM was contacted and commented that to his knowledge the Body Corporate would not dispute this information and that he had not been notified of the cats being sighted other than the one incident in May.

JURISDICTION

I am satisfied that this is a matter which falls within the legislative dispute resolution provisions.[3]

Section 276(1) of the Act provides that an adjudicator may make an order that is just and equitable in the circumstances (including a declaratory order) to resolve a dispute, in the context of a community titles scheme, about: a claimed or anticipated contravention of the Act or the CMS; or the exercise of rights or powers, or the performance of duties, under the Act or the CMS; or a claimed or anticipated contractual matter about the engagement of a person as a body corporate manager or service contractor; or the authorisation of a person as a letting agent.

An order may require a person to act, or prohibit a person from acting, in a way stated in the order.[4] An adjudicator's order may contain ancillary and consequential provisions the adjudicator considers necessary or appropriate.[5]

DETERMINATION

The issue for consideration in this matter is whether the decision of the Body Corporate not to approve the applicant’s request to keep two cats in her apartment should be overturned and whether the applicant should be able to have these cats in her apartment.

Animal by-law and policy

The CMS for Vardon Point Apartments, recorded on 23 October 2003 includes the following:

7. Keeping of Animals
   • Subject to Section 181 of the Body Corporate and Community Management Act 1997 (‘the Act’) an owner or occupier of a lot shall not without the prior written approval of the Body Corporate of the Committee bring or keep any animal on its lot or on the common property or permit any invitee to bring or keep any animal on the lot or the common property.
   • Any such approval may be given subject to the following conditions and any other conditions determined by the Body Corporate or the Committee:
     • (a) the relevant animal must be restricted to the owner or occupier’s lot and any area set aside for the exclusive use of that lot;
     • (b) the animal must be properly restrained or controlled at all times;
     • (c) the owner or occupier must prevent such animal from causing a nuisance, whether by noise or otherwise, at all times;
     • (d) any approval granted extends only to the individual animal specified in the approvals.
   • If any of the conditions specified in By-law 7.2 are contravened the Body Corporate or the Committee may after giving 2 warnings to the owner or to the occupier require the immediate and permanent removal of the animal from the lot and common property.
     

The substance of the by-law has remained unchanged since the first CMS recorded in August 2001 and in the two intervening CMS. The by-law was not altered after the AGM resolution on animals in 2002. I also note that the by-laws for the principal scheme, Vardon Point Pelican Waters CTS 29418 (also recorded on 23 October 2003) include the same animal by-law[6].

There appears to be a widespread view amongst owners that this is a ‘no pets’ scheme and, moreover, that the applicant should have known this. Regardless of what owners were told when they purchased their lot, this is simply not correct. By-law 7 does not prevent pets being kept in the scheme. Rather it permits them with prior consent. Particularly by including conditions, the by-law specifically contemplates the potential that animals be approved in the scheme.

It is a decision for the Body Corporate to decide whether and under what circumstances it will approve a pet under By-law 7. It is appropriate for a committee or owners generally to have clear and reasonable policies to guide the exercise of their discretion under the by-law, and this can include a preference against pets. But the Body Corporate must actually exercise its discretion and consider each application on its merits. It is not reasonable for a body corporate to rigidly apply a ‘no pets’ policy without consideration of individual circumstances of each request for a pet.

For this reason, I am of the view that the purported resolution at the 2002 AGM is not valid. The effect of the motion was to override the by-law and prevent the exercise of the discretion provided for in the by-law. However the Body Corporate cannot change a by-law without approving and recording a new CMS. Therefore, while I appreciate that owners might have thought that they were setting a binding policy when passing that resolution, the resolution has no effect.

I also note that the ‘house rules’ specify that pets are not allowed in the apartments. Bodies corporate and their committees commonly make ‘house rules’ for the purpose of providing guidance on matters such as the use of recreational facilities such as pools and tennis courts. However it is important to recognise that these do not replace or override the by-laws and are not legally enforceable against an owner or occupier. If a body corporate wishes a ‘rule’ to be legally binding, it must formalise the rule by passing a special resolution consenting to a new CMS incorporating the rule as a new by-law.

I understand that there may be interest by some owners in passing a new by-law prohibiting all pets. This is an approach that the Body Corporate could consider. However, great care would need to be taken in drafting such a by-law. In a recent appeal decision[7] the Commercial and Consumer Tribunal considered an adjudicator’s order regarding the validity of a by-law which prohibited the keeping of ‘animals’. The Tribunal concluded that a blanket ban on all defined ‘animals’ was unreasonable and so invalidated the by-law. The Tribunal stated (at para 34-35):

“Hence, if in the determination of this proceeding it can be held that the meaning given to “animal” in the new by-law 16.1 is a meaning which makes the particular provision “unreasonable” because it has the effect that an animal such as a gold fish is also the subject of the absolute ban once all “prior” approvals have been spent, it is open to the Tribunal to decide that the provision is invalid as being unreasonable. ...

Since there is clearly no rational basis upon which it can be said that the keeping of a gold fish in a safe and healthy environment could be a matter which could cause any difficulty to any other lot owner, yet is the subject of an “absolute” ban, the conclusion is fairly open that such a by-law is “unreasonable”.”

The arguable consequence of this decision is that any by-law purporting to prohibit pets should be specific as to the class, type or category of animals sought to be prohibited, or should specifically permit the keeping of those animals which could reasonably be said not to cause any adverse impact on others in the scheme, or should provide exemptions to any ban in exceptional circumstances. The decision could also lead to the conclusion that refusing permission for a pet that has no likelihood of adversely impacting on anyone in the scheme would be unreasonable.

Body Corporate decision

I note that the by-law specifically refers to the Body Corporate or the Committee approving animals. So, while the Committee can decide this issue, it is entirely valid for the Committee to refer a decision to a general meeting, particularly if it is a matter where there is some controversy or strong views in the scheme.

The Body Corporate has clearly decided at a general meeting not to approve the cats. The question then is whether this decision is valid. There is no suggestion here that the Body Corporate gave implicit approval cats by not taking steps to remove the cats in a reasonable period of time. The Body Corporate acted as soon as it was aware of the cats. Similarly there is no suggestion of discrimination in the sense of these cats being refused when others are approved, without any logical or reasonable basis for the distinction. However, I am concerned that the Body Corporate has not validly exercised its discretion under By-law 7 to consider the specific application. Rather I find that at least some owners voted against the motion on the basis of an incorrect believe that the scheme had a binding ‘no pet’ policy.

I am also concerned that there seems to be some indication of bias against the applicant because of a view that she should have known the scheme did not permit pets and that she was keeping a pet contrary to the by-law. As indicated above there is no valid ‘no pets’ restriction in this scheme and it was entirely reasonable of the applicant, on reading the current by-laws, to believe that pets could potentially be approved. Moreover, while the applicant did breach the by-laws by keeping pets in her lot without prior approval, she had not (as many owners seem to believe) moved the cats in permanently or since she first moved in. Rather, I accept that the cats have only been housed in Lot 63 for three short periods totalling less than five weeks in the year that the applicant has owned her lot. Accordingly, I would consider that her breach of the by-laws was comparatively minor. Moreover I do not consider that the breach is a relevant consideration for the Body Corporate in determining whether an application to keep the cats permanently should be approved.

I consider that the relevant considerations for owners in assessing the applicant’s request to keep two cats in her apartment would be the likely impact of these particular cats on other owners and occupiers. In regard to the concerns raised in the submissions, I note that the conditions included in the by-law provide quite comprehensive controls and the capacity to remove the pets if these conditions are not complied with. Therefore, if a cat were to ‘escape’ again, for example, there would be scope for the cats to be removed. I have some difficulty with the concerns regarding allergies given that pets are permitted in parts of the Vardon Point complex and there seems no reason why these cats would have an effect if existing pets in the villas do not. I would question whether owners could reasonably determine the question on the basis of a view that cats generally should not be kept within an apartment. I also fail to understand how these pets would affect maintenance standards in other lots, as allowing pets in this lot would not lead to pets in other lots unless the owners of those lots sought and received approval for pets in those lots. As each case should be considered on its merits, approving these cats would not set a precedent that would allow other animals if those other animals clearly had a greater impact. Hygiene and odour in regard to the disposal of animal waste may be a relevant factor but I see no reason why that issue could not be addressed with specific conditions.

Conclusion

There are clearly strong views in this scheme as to the keeping of pets. However, there seems to be considerable misunderstanding and misinformation amongst owners about whether pets can be permitted in the scheme and the conduct of the applicant. For this reason I have concerns that the decision of the Body Corporate on 19 September 2008 was unsound. Accordingly I consider it desirable to return the matter to owners to reconsider at the next general meeting.

I have made an order requiring the Body Corporate to relist this matter for consideration at the next meeting. The motion can be in the same or similar terms to the motion previously considered. The Committee could also consider proposing additional conditions however if the applicant does not accept these submissions it would be preferable to list the motion with alternatives, providing the option for approval with the additional conditions or without.

I also propose to require a copy of this order to be provided to owners so that they fully understand the correct situation. Owners should then vote on the motion having regard to their obligation to decide this request for cats on its merits rather than applying a blanket prohibition to pets. This does not mean that owners cannot reasonably decide to vote against the motion. Rather, they should consider the circumstances of this case and any impact these cats are likely to have.

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[1] As of 30 August 2008 the new Accommodation Module came into force, replacing the Body Corporate and Community Management (Accommodation Module) Regulation 1997 which applied until that date.
[2] See sections 246 and 244 of the Act respectively
[3] See sections 227, 228, 276 and Schedule 5 of the Act
[4] Section 276(2) of the Act
[5] Section 284(1) of the Act

[6] Pursuant to section 58 of the Act, the CMS for the principal scheme prevails. This means that if a subsidiary scheme amended a by-law in a manner different to the principal scheme’s by-laws, the principal scheme’s by-law would prevail to the extent of any inconsistency.
[7] K Dorney QC in Tutton v Body Corporate for Pivotal Point Residential CTS 33550 [2008] CCT KA005-08